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David Bisard outlines arguments in his appeal

Former Indianapolis police officer David Bisard, serving a 13-year prison sentence in a fatal 2010 drunken driving crash that killed a motorcyclist, is now outlining why he believes he did not get a fair trial in the case.

David Bisard outlines arguments in his appeal

A public defender for David Bisard argues that the trial court denied Bisard his constitutional right to an impartial jury by failing to order a mistrial over alleged juror misconduct.
(Photo:
Charlie Nye / The Star
)

Former Indianapolis police officer David Bisard, serving a 13-year prison sentence in a 2010 drunken driving crash that killed a motorcyclist, is now outlining why he thinks he did not get a fair trial in the case.

In an appeal brief filed Wednesday with the Indiana Court of Appeals, Bisard’s public defender lays out three arguments behind Bisard’s claim:

• Bisard was denied an opportunity to provide a defense to state claims that he was a “tolerant drinker” and thus it would be difficult for other police officers to detect the signs of alcohol use or intoxication at the crash scene.

• The trial court abused its discretion and denied Bisard his constitutional right to an impartial jury by failing to order a mistrial over alleged juror misconduct.

• The judge erred when he added time to Bisard’s sentence for abusing a position of public trust.

A spokeswoman said the Marion County prosecutor’s office had no comment on Bisard’s new claims.

The attorney general, who represents prosecutors in appellate cases, has not yet filed a response to the Bisard appeal brief.

Bisard, 40, was convicted Nov. 5 by an Allen County jury of nine counts of drunken driving, reckless homicide and criminal recklessness for driving his patrol car into a group of motorcyclists while responding to a nonemergency call in his patrol car.

Bisard’s blood-alcohol level after the Aug. 6, 2010, crash was 0.19, more than twice the level at which a driver is considered intoxicated in Indiana. His trial was moved to Allen County because of extensive publicity in Central Indiana.

Allen Superior Court Judge John Surbeck sentenced Bisard to 16 years in prison, and he is incarcerated at the New Castle Correctional Annex. With three years suspended and time off for good behavior, Bisard’s earliest possible release date is Oct. 29, 2019, according to Department of Correction online prison records.

While out on bail before his trial, Bisard was arrested on a second drunken driving charge in April 2013 after a one-vehicle crash in Lawrence. A blood test revealed his blood-alcohol level was 0.22.

Now Bisard is claiming he did not get a fair trial in the fatal crash.

In his appeal, Bisard said his defense was hindered by his inability to respond to the “tolerant drinker” testimony presented by a prosecution witness. The testimony indicated that it can be hard to detect alcohol use or intoxication in people who drink heavily over a long time. Prosecutors used that testimony to help explain why other officers at the crash scene did not suspect that Bisard had been drinking.

“Bisard sought to introduce witness testimony to demonstrate he was not that sort of tolerant drinker,” the appeal says. “However, the trial court ruled such evidence would open the door for the state to admit evidence relating to Bisard’s 2013 (drunken driving) arrest.”

The appeal says Bisard could have countered that testimony without giving the state an opportunity to bring up his subsequent arrest.

Bisard’s jury misconduct claim alleges a juror had conducted an Internet search about blood-alcohol testing and shared that information with other jurors. When jurors were questioned about the allegation, several said they had not heard the other jury member’s comments or did not know what he might have researched or learned, according to the appeal.

However, one juror said she felt “uncomfortable,” according to the court filing, but still could make a decision in the case based solely on the facts and what she saw and heard in the courtroom.

Bisard’s final point is that Surbeck was wrong when he determined Bisard violated the public’s trust by being “significantly intoxicated” while on duty and cited that as an aggravating factor to be considered at sentencing. Bisard says being intoxicated did not “constitute an abuse of police power and a breach of the public trust.”

“For all the foregoing reasons, David Bisard respectfully asks this court to reverse his convictions ... because he was denied his constitutional rights to present a defense and to a fair and impartial jury,” the appeal concludes. “Alternatively, Mr. Bisard respectfully asks this court to reduce his sentence because the trial court abused its discretion when sentencing him.”